Working Group on Arbitrary Detention’s Opinion Finds Julian Assange Arbitrarily Detained
Monday 8 February 2016 @ 12.08 p.m. | Legal Research
The Working Group on Arbitrary Detention (WGAD) has announced the adoption of Opinion 54/2015, which concludes that Julian Assange is subject to arbitrary detention by the Governments of Sweden and the United Kingdom. The controversial decision was adopted by WGAD on December 4, 2015, and then sent to the respective Governments on 22 January 2016, before the Opinion’s public release.
Mr Assange has called the decision a “victory of historical importance”, but both Sweden and the United Kingdom have publicly rejected the decision, with UK foreign secretary Philip Hammond describing the decision as “ridiculous”.
Who are the Working Group on Arbitrary Detention?
The WGAD was originally set up by a resolution of the United Nations Commission on Human Rights in 1991. The WGAD has a three-year mandate, and has been continually renewed by the Commission on Human Rights and its successor, the Human Rights Council. According to the UN website, the WGAD’s current mandate allows it:
“To investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned…
To act on information submitted to its attention regarding alleged cases of arbitrary detention by sending urgent appeals and communications to concerned Governments to clarify and to bring to their attention these cases”
The Working Group currently consists of a Chair-Rapporteur (Mr Seong-Phil Hong, Republic of Korea), a First Vice-Chair (Mr José Guevara, Mexico) and a Second Vice-Chair (Mr Sètondji Adjovi, Benin), plus additional members. Currently there are two extra members, Mr Vladimir Tochilovsky, Ukraine and Ms Leigh Toomey, who is Australian. Ms Toomey did not participate in the Assange decision, in accordance with WGAD rules, because of Mr Assange’s Australian nationality.
The WGAD Opinion
The final opinion was supported by the three chairs, with Mr Tochilovsky issuing a separate dissenting opinion. WGAD highlighted a number of issues in reaching their decision that Mr Assange had been arbitrarily detained, including his initial detention in Wandsworth prison for 10 days and its continuation in the form of house arrest for 550 days at the beginning of the period, which WGAD said raised significant questions about “what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.” [at 87]
They were also concerned about the European Arrest Warrant, which they found was “the only basis of the deprivation of liberty of Mr Assange”. WGAD noted that:
“Mr Assange has never been formally indicted in Sweden. The European Arrest Warrant was issued for the purpose of conducting preliminary investigation in order to determine whether it will lead to an indictment or not.” [at 93].
As a result, they concluded:
“there has been a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration” [at 97].
One other aspect of the case the WGAD highlighted was the fact the UK has since changed their extradition laws, so that extradition of individuals is no longer permitted where the warrant is not initiated by a judicial authority (which does not cover warrants issued by a prosecutor, as occurred in the Assange case) [at 69, note 1], meaning that Mr Assange’s extradition would no longer be allowed by UK law.
WGAD concluded that:
“[t]he deprivation of liberty of Mr Assange is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights…
taking into account all the circumstances of the case, the adequate remedy would be to ensure the right of free movement of Mr Assange and accord him an enforceable right to compensation.”
Mr Tochilovsky, in his succinct dissenting opinion, wrote that Mr Assange’s deprivation of liberty was self-imposed, saying it essentially raised questions falling outside the proper mandate of WGAD:
“Mr Assange fled the bail [sic] in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention…
The mandate of the Working Group is not without limits. By definition, the Working Group is not competent to consider situations that do not involve deprivation of liberty. For the same reason, issues related to the fugitives’ self-confinement, such as asylum and extradition, do not fall into the mandate of the Working Group” [at 3-5].
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